Comparative Advertisement by Shuchetan Bhattacharyya

Comparative advertisement by Shuchetan 200
Bhattacharyya 9
PAILAN COLLEGE OF MANAGEMENT &

TECHNOLOGY
BBA[H] FINAL SEMESTER 2009
STUDY PAPER: MARKETING
AREA OF SPECIALIZATION : COMPARATIVE
ADVERTISEMENT
(A REPORT SUBMITTED IN PARTIAL
FULFILLMENT OF THE REQUIREMENTS FOR THE
DEGREE OF BACHELORS IN BUSINESS
ADMINISTRATION IN WBUT)
SUBMITTED BY:
SHUCHETAN BHATTACHARYYA
ROLL NO: 15650061040
REGISTRATION NO: 156205011037
1
Bhattacharyya 9
Acknowledgement
I am extremely indebted to the help that I have

received in the making of this study paper. It
would have been an extremely difficult job for
me if my teachers wouldn’t have helped me in
the making of this study paper.
I am thankful to:
Mr. Apoorva Saha
Mr. P. S. Chakraborty
Mr. A. K. Roy
Mz. Saswati Roy Chel
Mr. Dipanjan Dutta
Mz. Nabanita Maity
I am also thankful to my friends & my family.
2
Bhattacharyya 9
CONTENTS
Sl Description Page
No No
1 Acknowledgement 2
2 What is Advertisement? 4
3 What is Comparative Advertisement? 5-6
4 Functions of Comparative Advertisement. 7
5 Risks of Comparative Advertisement. 8
6 Interests 9 – 14
7 Different Attitudes 15 -
17
8 Comparisons 18 -
29
9 Conclusion 30
3
Bhattacharyya 9
10 Bibliography 31
What is Advertising?
Advertising is a form of communication that typically

attempts to persuade potential customers to
purchase or to consume more of a particular brand of
product or service. “While now central to the
contemporary global economy and the reproduction
of global production networks, it is only quite
recently that advertising has been more than a
marginal influence on patterns of sales and
production. The formation of modern advertising was
intimately bound up with the emergence of new
forms of monopoly capitalism around the end of the
19th and beginning of the 20th century as one
element in corporate strategies to create, organize
and where possible control markets, especially for
mass produced consumer goods. Mass production
necessitated mass consumption, and this in turn
required a certain homogenization of consumer
tastes for final products. At its limit, this involved
4
Bhattacharyya 9
seeking to create ‘world cultural convergence’, to

homogenize consumer tastes and engineer a
‘convergence of lifestyle, culture and behaviors
among consumer segments across the world’.”
What is comparative advertisement?
Before analysing the definition of comparative

advertising, it is useful to show the comparative
advertising in general.
Comparative advertising, as a special form of
advertising, is a sales promotion device that
compares the products or services of one
undertaking with those of another, or with those of
other competitors. All comparative advertising is
designed to highlight the advantages of the goods or
services offered by the advertiser as compared to
those of a competitor. In order to achieve this
objective, the message of the advertisement must
necessarily underline the differences between the
5
Bhattacharyya 9
goods or services compared by describing their main

characteristics. The comparison made by the
advertiser will necessarily flow from such a
description.
Comparative advertising is an advertisement in
which a particular product, or service, specifically
mentions a competitor by name for the express
purpose of showing why the competitor is inferior to
the product naming it.
This should not be confused with parody
advertisements, where a fictional product is being
advertised for the purpose of poking fun at the
particular advertisement, nor should it be confused
with the use of a coined brand name for the purpose
of comparing the product without actually naming an
actual competitor.
Examples
In the 1980s, during what has been referred to as the
cola wars, soft-drink manufacturer Pepsi ran a series
of advertisements where people, caught on hidden
camera, in a blind taste test, chose Pepsi over rival
Coca-Cola.
The use of comparative advertising has been well
established in political campaigns, where typically
one candidate will run ads where the record of the
6
Bhattacharyya 9
other candidate is displayed, for the purpose of

disparaging the other candidate. The most famous of
these type ads, which only ran once on TV, consisted
of a child picking daisies in a field, while a voice
which sounded like Barry Goldwater performed a
countdown to zero before the launch of a nuclear
weapon which explodes in a mushroom cloud. The ad
was produced by Lyndon B. Johnson's campaign in an
attempt to prevent Goldwater from either winning
the nomination of his party or being selected.
Another example took place throughout starting in
circa 1986, between the bitter rivalry between
Nintendo and Sega. "Genesis does what Nintendon't"
immediately became a catchphrase following the
release of the Sega Genesis (known as Mega Drive in
PAL countries).
Function of comparative advertising
Comparative advertising should enable advertisers to

objectively demonstrate the merits of their products.
Comparative advertising improves the quality of
7
Bhattacharyya 9
information available to consumers enabling them to

make well-founded and more informed decisions
relating to the choice between competing
products/services by demonstrating the merits of
various comparable products. Based on this
information, consumers may make informed and
therefore efficient choices. (These statements are
true only if the comparative advertising is objective.)
Comparative advertising which aims to objectively
and truthfully inform the consumer promotes the
transparency of the market. Market transparency is
also deemed to benefit the public interest as the
functioning of competition is improved resulting in
keeping down prices and improving products.
Comparative advertising can stimulate competition
between suppliers of goods and services to the
consumer's advantage.
Risks of comparative advertising
8
Bhattacharyya 9
Comparisons between goods and services of different

undertakings carry with them some significant risks.
There is a danger that once undertakings address the
merits and inadequacies of competing goods or
services, they may be tempted to denigrate them or
derive unfair advantages from such inaccurate
comparisons. Just like traditional forms of
advertising, comparative advertising seeks to both
assist the development of the undertaking concerned
and to inform consumers. Although both forms of
advertising seek to attract customers, in case of
comparative advertising, commercial relationships
may be exposed to the constant threat of unfair
practices.
9
Bhattacharyya 9
Interests
1. Affected interests
Comparative advertising affects the interests of
consumers as well as the interests of competitors,
interests of proprietary rightholders and, in this way,
those of the general public.
Possible harm of interests of consumers and interests
of competitors is obvious, but there is a need to show
the role of proprietary rightholders. Proprietary
rightholders have a trade mark or a trade name. This
trade mark or trade name is used by advertiser in
comparative advertising. In order to make
comparative advertising more effective, it is useful
for the advertiser to identify the goods or services of
a competitor, making reference to a trade mark1 or
trade name (hereinafter together trade mark) of the
proprietor. However, the holder of a trademark has
the exclusive right to use it to identify the products
or services for which the trademark is registered, and
to dispose thereof. The scope of the exclusive rights
conferred by trademark protection covers the right to
use the trademark for advertising purposes.
1
The function of the trademark is to individualize and distinguish products or services.
10
Bhattacharyya 9
Proprietary rightholders are in a lot of cases same

persons as competitors, but they create a smaller
group of persons inside competitors. Sometimes
proprietary rightholders are different persons than
competitors, their product or service is not a
competitive one to advertiser’s product or service.
2. Interests to be protected
The interests to be protected by the law are the
following:
the protection of competitors;
the protection of proprietary rightholders;
the protection of consumers; and
the protection of the general public interest in
undistorted competition.
(i) Due to the special characteristics of comparative

advertising, namely the direct or indirect reference in
the advertising to identifiable competitors, it is
important to protect the interests of such
competitors as well in order to prevent
disparagement, or taking of unfair advantage of the
competitor's reputation. This consideration justifies
the application of the general rules on unfair
11
Bhattacharyya 9
competition very thoroughly and – where necessary –

the application of special conditions that comparative
advertising should comply with in order to ensure
that unfair use of the competitor’s reputation and
disparagements of competitors be prevented.
(ii) As far as the proprietary rightholders are

concerned the cases are related to the use of well-
know trademarks or trademarks enjoying good
reputation. Obviously, the affected trademark must
have a reputation in the market for the products or
services provided. This reputation can economically
be exploited. Trademark owners must have enjoy a
wider scope of protection against taking unfair
advantage of the reputation. In these cases,
consumers may more easily associate the products
compared by the advertiser with the trademark of
the trademark owner. There are some main types of
examples:
- In a ’classical’ comparative advertising the

advertiser compares its product or service to
competitor’s one, using its trademark during the
comparison. The aim of competitor is to evidence
that its product or service is better than the
competitor’s one. In my opinion there is a
significant difference between correct and
incorrect comparison.
12
Bhattacharyya 9
A falls statement affects the interests of consumer as

well as the interests of competitor (as a potential
market looser) and interests of proprietary
rightholder (because the value of its trade mark can
be reduced). Competitor and proprietary rightholder
in this case is the same person. The falls comparison
coses two types of harms to the same person: to the
competitor (as a potential market looser) and to
proprietary rightholder (because the value of its
trade mark can be reduced).
Even a true statement can be considered as illegal to
a proprietary rightholder. In this second case the
comparative advertising does not affect the
competitor’s goodwill, but the frequently using of its
trade mark can be stated as unfair. Even correct and
objective advertising may be considered unfair when
it exploits the renown of a competitor by attributing
to his own product the well-known qualities of the
product of the competitor. The exploitation of the
reputation of a competitor is admissible when it
enhances the transparency of the market and is
limited in form and content to what is necessary for
this purpose (principle of proportionality). Hence, a
company should refrain from referring to its
competitors and use their trademarks, except in case
of absolute necessity.
13
Bhattacharyya 9
- The advertiser gives the impression that he is

advertising for the goods of the trademark owner
instead of for his own goods.
- The use of a third party’s trademark in advertising

can mislead the public about the existing
relationship between the advertiser and the owner
of the trademark.
- The advertiser refers to the famous trademark or
distinctive sign to take advantage of its renown
and to favour its own product which it describes as
being as good. The two products are not
contrasted with each other (as in the first
example), but described as being both as good.
When the reference to others’ trademark is
combined with words such as “in the style of … “,
“type”, the “kind”, a risk of confusion may appear
since the public does not take such words into
account. With respect to the use of trademarks in
comparative advertisements, it is not allowed to
take unfair advantage of their reputation by way of
assimilation. It was considered to contravene
public policy, if the advertiser tries to show the
quality of its own products by comparing them to
well known other products in order to make use of
their standing and reputation.2 Using trademarks
2
One Austran case involved a comparative advertising campaign of a major Austrian drugstore, where
several products of the drugstore’s newly established house-brand were compared with well-known
competing brand products (for example, “Kodak”). The advertisements only highlighted the – substantially
– lower price of the drugstore’s own products without establishing why the compared products can be seen
as equal. Almost similar factual pattern relating to well-known perfumes happened even in Hungary.
14
Bhattacharyya 9
unfair way in comparative advertising is

parasitism, i.e. the exploitation of others’
reputation. So-called "parasite" advertising takes
advantage without restraint of the good reputation
of a competing or non-competing product.
(iii) Potential misleading nature of the comparative

advertising is the main danger for consumers.
Pursuant to Article 2 (2) of Directive 450/84, an
advertisement is misleading if ‘in any way, including
its representation, it deceives or is likely to deceive
the persons to whom it is addressed or whom it
reaches and if, by reason of its deceptive nature, it is
likely to affect their economic behaviour or, for those
reasons, injures or is likely to injure a competitor.’
Whether a comparative advertisement is misleading
or not, depends on the understanding of the
relevant3 public. The standard is an average
consumer who is reasonably well-informed. A
comparative advertisement would be misleading,
therefore forbidden, if certain part4 of the relevant
public – consisted reasonably well-informed
consumers – would be mislead. Price comparisons
are especially dangerous. Stating alonly the cheaper
price is can be misleading to the consumer, if the
difference in price is due to fact that the more
3
Relevant public is created by people to whom the advertisement is addressed or whom it reaches.
4
Directive does not use the “certain part of the public” phrase, but Member States’ laws or court practices require more than one
misleaded consumer: 10-15 % of the public in the Swiss law, or ‘a substancial proportion of the reasonable audience’ (UK).
15
Bhattacharyya 9
expensive product or service meets ore needs or has

more advantages.
A further possible danger of the comparative

advertising for consumers is the confusion. A correct
comparative advertisement does not create
confusion between the advertiser and its
competitor.5
(iv) Having regard a Member State legislation it

cannot be established whether in case of
comparative advertisements, the protection of the
general public interest in undistorted competition
constitutes an independent interest to be protected
or this is an aggregate result arising from the
protection of consumers, competitors and
rightholders. For the EC is very clear the independent
importance of general public interest, namely
strengthening of the internal market and limiting
gaps of free movement of goods and services.
Different attitudes towards comparative

advertising
5
Some examples of confusion: consumer became uncertain to whom belongs tarde marks, whether the advertiser is a subsidiary of the
other company or not and so one.
16
Bhattacharyya 9
Comparative advertising as a kind of advertising has

a long history, but as a legal term relatively young
phenomenon. Before 1970 ‘comparative advertising
was not regulated because it was regarded as insider
question of competitors, and it was supposed that
rules of competition law offer adequate protection’.6
Lack of specific regulation leaded to the practical
prohibition. Comparison in an advertisement
generally was regarded, as an illegal market
practice.
The American court practice realised first that

comparative advertising is a complex, difficult
activity having a lot of speciality. While in the United
States comparative advertising has been a well-
recognised and acceptable form of advertising,
Europe was divided in this point of view. There were
significant differences in Europe and the Seventies.
The majority of European countries have been hostile
to such advertising for a long time and this form of
advertising was considered as a per se unfair market
practice. The comparative advertising was held too
risky and dangerous in most of the continental
countries. This method of advertising was prohibited
by the general rules of unfair competition law,
without special legal norms. Imre Vörös shows the
6
Pribula László: A reklámtevékenység és a reklámszerződések hazai jogi szabályozása
PhD disszertáció Debrecen 2003., kézirat 91. p
17
Bhattacharyya 9
traditional Germain prohibition.7 ’The UK has a

relatively liberal regime permitting comparative
advertising in most cases but in many continental
countries all comparative advertising, even if true,
has been classed as unfair competition or
automatically misleading.’8 In the United Kingdom
and in Portugal the comparative advertising became
legal.9 I have to add, that this liberalisation was
relative, comparative advertising even in England
was accepted only in certain circumstances. Articles
20-24 of the British Code of Advertising Practice10
contained detailed suggestions for comparison in
advertisements. Later accepted rules of EC Directive
are similar to these suggestions, so in my opinion
that these, non obligatory, rules of the British Code
of Advertising Practice were a kind of pattern for the
European legal harmonisation work. Telling me the
trough the correct comparison even in UK was not
absolutely free. The English Trade Marks Act (1938)
prevented much comparative advertising not
allowing competitors to use registered trademarks
without the consent of the right owner.11 Even ’the
7
Vörös Imre: Az európai versenyjogok kézikönyve TRIORG Kft., Budapest 1991. 28 p
8
Howard Johnson: New EU directive on comparative advertising
Tolley’s Communications Law Vol 3 Number 2 1998. 66. p
9
See detailed way in Vida Sándor: Az összehasonlító reklám az angol jogrendszerű országokban
Külgazdaság, Jogi Melléklet 1992/10.
10
The British advertising industry has a system of self-regulation which has been established under the auspices of its voluntary
regulatory body, the Advertising Standars Authority (ASA). There is a British Code of Advertising Practice which is administered by
the code of advertising practice committee, and the committee and the ASA deal with complaints of breaches of the code.’ Miller-
Harvey-Parry: Consumer and Trading Law Oxford University Press, Oxford 1998. 533 p
11
Prohibition was cancelled only in 1994. Section 10(6) Trade Marks Act 1994 now allows the use of a competitor’s trade mark
provided the use is (i) in accordance with ‘honest practices in industrial and commercial matters, and (ii) not ‘without due cause taking
18
Bhattacharyya 9
criteria in Member States where comparative

advertising is permitted differs in several ways’.12
A kind of convergence started in the late Seventies’

in UK and continued in Germany in the Eighties’.
In the English court praxis have arrived cases when a
comparative advertising created a ‘passing-off’. Falls
statement that the advertiser’s movie is based on
somebody else’s successful novel was accepted as a
passing-off by the court.13 In 1979 a new tort was
created. The tort of unfair competition in certain
cases covered even the comparative advertising.
Seller’s falls statement about that its products are
better than its competitor's products harms the
competitors goodwill.14
In the Germain Law the price-comparing became
legal in 1988, except it is contrary to the business
fairness.15
Presented examples on convergence do not affect

the fact that Europe was divided in the point of view
unfair advantage of or being detrimental to the distinctive character of the trade mark’.
12
Advertising and the consumer within the European Community, EC Consumer Information programme
Kestrel Communications, London 1993. 21 p
13
Samuelson v. Producers Distributing Co. Ltd. 48 RPC 593
14
Erven Warninc Besloten Vennootschap and others v. J. Townend and Sons, Hull and others
1972 2 All England Reports 927. Cases and the tendencies are analysed by Imre Vörös in Vörös Imre: Az
európai versenyjogok kézikönyve 2. kiadás Logod Bt., Budapest 1996. 26-27 pp
15
See more detailed way in Vörös Imre: Az európai versenyjogok kézikönyve 2. kiadás Logod Bt.,
Budapest 1996. 12 p
19
Bhattacharyya 9
of acceptance on comparative advertising. This

situation closed a lot of problems.16 So the EC
legislation was a great step forward.
Comparison
As this study mentioned earlier the most classical

types of comparative advertising, when comparison
of the advertiser and its competitors, or comparison
of their products is the main element of the
advertising activity. Also clear that some
comparisons cannot be regarded as comparative
advertisements. The definition of comparative
advertising clearly does not include comparisons of
an advertiser’s own products. For example an
advertiser promotes a dishwasher detergent by using
the phrase “one hundred per cent more washing
power”. This phrase means that new material is two
times effective, than advertiser’s earlier product. The
mentioned advertisements compare advertiser’s own
products from quality point of view. Price
comparisons are also frequently used. An
16
‘Numerous users of commercial communications also complain that they cannot use comparative advertising in certain Member
States, and are therefore forced to redesign enterely their commecial communication campaigns in those territories. The complaints
focus on Germany, Belgium, France and the Netherlands. On this, the Commission has proposed that comparative dvertising should
be permitted as long as it is based on objective comparsons that are not used to denigrate the trademark or reputation of a competitor.
At the level of Council, political agreement on this proposed directive was reached in November 1995.' Commercial Communication
in the Internal Market – Green paper from the Commission Brussels, 08.05.1996., COM(96) 192 final.
20
Bhattacharyya 9
advertisement states that the actual price of

advertiser’s product is smaller than the earlier price
was.17 This comparison does not refer to an
identifiable competitor or its product. This type of
comparison is outside the definition of comparative
advertising. These special kinds of – quality or price –
comparisons are regulated by advertising related
rules of the unfair competition law, which means that
they were allowed if they were not misleading.
As one can recognise there are clear cases, when
relatively easy to decide whether a comparison can
or cannot be regarded as comparative
advertisements. However new types of comparison
have arise, and borders sometimes are less clear.
1. ‘Abstract’ comparison
The ‘So’ called ‘abstract’ comparison does not refer

to an identifiable competitor or product.
Without - explicit or implicit - identification of the
competitor or its goods or services, in a case of
abstract comparison there is no possibility to speak
about comparative advertising. 18
17
This is the so-called “instead of” price comparisons. The classic pattern is to say “instead of” and cross out a higher price.
18
Under Austrian law abstract comparison is outside the scope of the definition of comparative
advertisements.
21
Bhattacharyya 9
2. System comparison
The so called ‘system comparison’ aims at

demonstrating the merits of different means of
distribution, production, application or functioning of
products or services (for example, the comparison
between the system “tampon” versus the system
“sanitary towel”).
Without - explicit or implicit - identification of the
competitor or its goods or services, in a case of
system comparison there is no possibility to speak
about comparative advertising.19
3. ‘Plural’ advertisements
This situation is opposite than cases in ‘abstract’ or

system comparison. In this case we can find
identified persons and/or products. The problem is
that there are more than one person as competitors
and/or more than one product as competitors’ goods
or services. This is in my terminology the ‘plural’
advertisements. Have not decided yet whether a
comparison with non one competitor, but more
competitors can be qualified as a comparative
19
System comparison are considered by Austrian court pratice as abstract comparative advertising because the system comparisons
usually do not refer to an identifiable competitor or product.
22
Bhattacharyya 9
advertising.20 An advertisements can establish a link

between the advertiser and more competitor, or
goods or services offered by the advertiser and more
competitor. Question weather this ‘plural’
advertisements belongs to the comparative
advertising or this is something else.
We can find two – different – answers: one derived
from the text of the definition and one from the aim
of European legislator.
‘Comparative advertising means any advertising
which explicitly or by implication identifies a
competitor, or goods or services offered by a
competitor.’ The text mentions only one competitor
(directly or through its goods or services). Having
regard only the text, the answer: the ‘plural’
advertisements cannot be qualified as a comparative
advertising. What does it mean? Requirements for
comparative advertising are irrelevant for ‘plural’
advertisements. In my opinion this is a bad result.
Having regard the function of the EC regulation I
would prefer another answered: the ‘plural’
advertisements belongs to the comparative
advertising. Add to the aim of the regulation, the
strengthen of the insider market, we can mention
Recital (6) of the Directive 97/55 sets forth that it is
20
Under Swiss law, comparative advertising may refer to an indeterminate number of competitors.
Pursuant to UK case law, regarding implied references to a competitor, case law suggests that where an
expression is such that it can only be construed as referring to one competitor, that is likely to amount to
identifying that one competitor.
23
Bhattacharyya 9
desirable to provide a broad concept of comparative

advertising in order to cover all types of comparative
advertising.
The larger interpretation looks like – in my opinion –
correct, and more useful, than the narrower.
Consequence of this larger interpretation, that
advertiser has to follow requirements for
comparative advertising regulated in national laws
on the base of Directive 97/55. In other case
comparison is not permissible.
4. Non-commercial comparison
Comparative advertising is a market behaviour.

Necessity of its special regulation, based on market-
related reasons. In the practice exist comparisons
without commercial purposes. Only the comparison
made for commercial purposes falls under the scope
of comparative advertising. Consequently,
comparisons (tests) made by third parties (i.e.,
consumer organisations) to provide information to
the public does not constitute a comparative
advertisement provided it does not promote any
goods or services.
24
Bhattacharyya 9
5. Comparison made by third parties
Comparisons can be divided (i) comparisons made by

competitors and (ii) comparison tests prepared by
third parties who are not competitors. In many
countries, product testing is done by consumer
organisations and/or private or public institutions like
the press, television and other media. It shall be
examined as to whether the results of their testing
may be used in advertising.
5.1 Test comparisons
It is generally permitted in Member States to carry

out test comparisons and to publish the results.
There are no legal restrictions on third parties
carrying out test comparisons on products. Similarly,
there are no restrictions on publishing correct21 test
results.
In my opinion test comparisons cannot be regarded
as comparative advertising.22 Only the comparison
made for commercial purposes falls under the scope
21
Generally, it is not allowed to publish product tests which are not true and therefore appropriate to mislead the public. Publication
is appropriate, provided that publication would not result in the breach of some other legal obligation or liability, e.g. breach of
copyright, breach of confidentiality, etc.
22
In Switzerland test comparisons are allowed to the same extent as comparative advertising is admissible. The Swiss statutory law
does not contain a definition of comparative advertising, and the jurisdiction limited itself to a very superficial attempt at defining it:
comparative advertising refers to competitors. Thus, the notion of comparative advertising is construed broadly, and entails - contrary
to EU law - comparative tests made by third parties.
25
Bhattacharyya 9
of comparative advertising. Organisations (which are

not related to the advertiser or a competitor)
preparing tests usually do not act intentionally with
the objective to promote the sales and business of an
undertaking.23
5.2 The use of test result in comparative advertising
Results of test comparisons can be used during
advertising activity. Generally permitted to make
references to test results in comparative
advertising.24 For the use of the test in the
advertising, in the majority of the countries, it is
generally required to obtain the consent of the
person/organisation who carried out the test.25
If the advertiser refers to such comparative test, he

shall be held liable for complying with the rules of
comparative advertising.
6. Advertisements claiming superiority
6.1. Theoretical approach
23
The Austrian Supreme Court has ruled that the publication of a test result by a consumer protection organization was not an act of
competition because there were no competitive interests.
24
However, Belgian law prohibits the reference to comparative test if such test was carried out by consumers' organization.
25
There are different reasons for the need of such consent: (i) copyright law (Germany, The Netherlands),
(ii) database law protection on the test results (The Netherlands), (iii) special statutory provision of
advertising law requiring such consent (Hungary).
26
Bhattacharyya 9
Certain advertisements claim the superiority or

uniqueness of the product, like "the best" and use of
other superlatives. ‘Including implicit comparison
may well pose problems for advertisers using general
statements such “better than all the rest” etc.
Famous slogans such as “nothing acts faster than
Anadin” may well have to be used with more
discretion.’26
What are legal consequences of this advertising?

Two opinions are possible:
(i) This kind of behaviour involves - without
indicating any specific competitor - per se a
comparison with all other products of the same
nature available on the market.
(ii) This kind of behaviour does not involve a
comparison.
It can be concluded that the admissibility of
advertisements claiming superiority can be subject
either to specific rules on comparative advertising (i)
or to general rules, i.e., prohibition of misleading (ii).
6.2. Comparative approach

26
Howard Johnson: New EU directive on comparative advertising
Tolley’s Communications Law Vol 3 Number 2 1998. 66. p
27
Bhattacharyya 9
There is certain divergence among the jurisdictions

of Member States as to whether advertisements
claiming superiority or uniqueness of the product fall
under the scope of comparative advertising, or such
advertisements are subject to general rules, i.e., the
prohibition of misleading advertising.
(i) In the UK, such advertisements constitute a form

of comparative advertising. In the Netherlands
such advertisements may constitute a form of
comparative advertising if the public will
interpret the advertisement as a reference to
one or more specific competitors rather than
every other competitor in the market. In Italy,
using superlatives in the advertising is
considered as a kind of indirect comparison with
all market participants in the specific field of
goods/services.27
(ii) In contrast, in other countries (Austria, Belgium,
France, Germany, Hungary, Spain)
advertisements claiming superiority or
uniqueness of the product - which do not include
a reference to an identifiable competitor - are
27
Under Swiss law advertising exaggeration, i.e. obtrusive praise that does not make sense, that is
recognizable as such and therefore not taken seriously by the public, and obtrusive exaggeration or
advertising resorting to value judgment do not fall within the ambit of the rules of comparative advertising.
They may however be unlawful if they amount to unnecessary disparagement. This and other national
examples were mentioned at LIDC Congress held in Budapest, 2004.
28
Bhattacharyya 9
considered to be outside the definition of

comparative advertising, and they are subject to
general rules.28 However I have to add, that in
Austria, an advertisement claiming superiority
was deemed to include a reference to
identifiable competitor(s), as the number of the
advertiser’s competitors on the relevant market
was very small and could easily be managed.
Further, if an undertaking has a dominant
position in the market, Belgian jurisprudence
considers the comparative advertising as a
comparison with such dominant undertaking.
6.3. My own understanding
In my opinion the situation is not so difficult as one

can suppose at first sight. The difference is not larger
than some legislation states that even such
advertisements identifies the competitors, others
states that identification is not automatical. It is
clear, that identification, if we can speak about
identification, happens in indirect way. As you can
see the second solution (Austria, Belgium), differs
from the first one (UK, the Nederlands), because the
qualification is not automatic. They can imagine
easier that advertisements claim the superiority or
28
In particular, they must not be misleading and aggressive tendencies should be avoided as well as global disparagements.
29
Bhattacharyya 9
uniqueness of the product does not contains

identification.
It seems to be desirable to apply the specific rules on
comparative advertising if it can be identified with
which competitor the comparison is made and such
specific competitor can be regarded as the injured
party.
On this base I suggest following the main rule in

Divination given by the Directive. Identification of
competitors or its product is important element of
comparative advertising. In my opinion it not
possible to decide generally whether advertisements
claim the superiority or uniqueness of the product is
qualified as a comparative advertising or not. Case
by case have to control whether the questioned
advertising contains identification or not. As far as
interpretation of identification court practices of
Member States are fare from each other.29
7. Comparative advertising without comparison
29
The rules on comparative advertising will indeed apply to advertisements claiming superiority or
uniqueness if there are only very few competitors and it is clear who is affected by a statement. For
example, the Austrian Supreme Court came to this conclusion in a case where the advertiser of a
newspaper claimed to be “faster and more current” and there was only one competing newspaper in the
relevant market. On the other hand, in France, the use of the slogan “No. 1 of newspaper advertisements”
was not considered as a comparative advertisement since the slogan did not refer, directly or indirectly, to
any competitor newspaper. However, the slogan was considered to be unfair.
30
Bhattacharyya 9
In order for there to be comparative advertising

within the meaning of Article 2a. of Directive, it is
sufficient for a representation to be made in any
form which refers, even by implication, to a
competitor or to the goods or services which he
offers. Therefore, if the competing products are
merely referred to within the advertising, it in itself
constitutes an instance of comparative advertising
and it is irrelevant whether an actual comparison is
made between the goods and services offered by the
advertiser and those of a competitor.30
In my opinion the name ’comparative advertising’

has some misleading nature. There are two kinds of
interpretation of the comparative advertising: a
narrower and a larger one.
(i) The narrower interpretation of this term is based
on a real comparison. Historically this type of
interpretation is older. Its original version
covered comparison between only products.
Even in a book, which was published in 1993, we
can meet with such a narrower meaning: ‘For
instance, until recently the Austrian courts ruled
invalid all form of comparative advertising (that
is advertising which states that the advertised
product is better than another named product)
30
C-112/99, Toshiba, para 31
31
Bhattacharyya 9
comparative advertising (whereby one product is

compared favourably to another named product)
general is illegal in Germany comparative
advertising (stating that the advertised brand is
better than other named products) was banned
for several years in Austria until the European
Court of Human Rights ruled that commercial
speech is entitled to some protection. Similarly
in Hungarian legal literature Katalin Mezey
states that ‘the central idea of comparative
advertising is that quality or other important
feature of a product or service is compared with
an other product by way of identification of the
other product or firm.’31 I am not sure whether
this ‘closely interpreted narrower’ definition
covers or not services and comparison between
competitors. Nowadays looks like clear, that it is
comparative advertising, if two competitors, two
products and/or two services are compared by
the advertisements. Perhaps the original version
of definition can be interpreted analogous way,
or the definition has changed, its scope of
application became a bit larger.
(ii) The wider interpretation of the term
’comparative advertising’ covers other – not
comparative – behaviours, too. This is something
31
Kaszainé dr Mezei Katalin: Fogyasztói jogok, HvgOrac Lap- és Könyvkiadó Budapest 1998. 139. p
32
Bhattacharyya 9
brand new. I am sure that is more than

interpretation question. This result, such a wide
interpretation can not be reached by way of
interpretation. There is a new definition which
was created by the Directive.
Conclusion
There are several kinds of “comparisons” that are

deemed outside the definition of comparative
advertising, and at the same time there are
comparative advertising without comparisons.
Boarders are not clear enough. There is a real danger
33
Bhattacharyya 9
that court practices interpret different ways these

boarders in Member States. This risk is against
insider market concept. It would be useful to draw
borderlines by a new Directive.
My feeling is, that there is a divergence between the
definition of comparative advertising and its criteria.
Some requirements are very clear way related to
traditional comparisons, some other criteria’s scope
of application is border: covers not only comparisons.
Would be useful to thinking on it.
Bibliography
a) www.google.co.in
b)www.yahoo.com
c) www.wikipedia.org
d) Advertising Management: Rajeev Batra, John G.
Myers & David A. Aaker: Prentice Hall India.
34
Bhattacharyya 9
e) Advertising and the consumer within the

European Community, EC Consumer Information
programme
f) Johnson, Howard: New EU directive on
comparative advertising
g)Oxford University Press
h) PÉTER MISKOLCZI-BODNÁR. Professor of Law, Director
of Institute of Civil Law Head of Commercial Law
Department, University of Miskolc
35

Comparative Advertisement by Shuchetan Bhattacharyya

Uploaded by

Copyright:

Available Formats

Comparative Advertisement by Shuchetan Bhattacharyya

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Comparative Advertisement by Shuchetan Bhattacharyya

Uploaded by

Copyright:

Available Formats

Comparative advertisement by Shuchetan 200

PAILAN COLLEGE OF MANAGEMENT &

I am extremely indebted to the help that I have

3 What is Comparative Advertisement? 5-6

4 Functions of Comparative Advertisement. 7

5 Risks of Comparative Advertisement. 8

Advertising is a form of communication that typically

seeking to create ‘world cultural convergence’, to

What is comparative advertisement?

Before analysing the definition of comparative

goods or services compared by describing their main

other candidate is displayed, for the purpose of

Function of comparative advertising

Comparative advertising should enable advertisers to

information available to consumers enabling them to

Risks of comparative advertising

Comparisons between goods and services of different

Proprietary rightholders are in a lot of cases same

(i) Due to the special characteristics of comparative

competition very thoroughly and – where necessary –

(ii) As far as the proprietary rightholders are

- In a ’classical’ comparative advertising the

A falls statement affects the interests of consumer as

- The advertiser gives the impression that he is

- The use of a third party’s trademark in advertising

unfair way in comparative advertising is

(iii) Potential misleading nature of the comparative

expensive product or service meets ore needs or has

A further possible danger of the comparative

(iv) Having regard a Member State legislation it

Different attitudes towards comparative

Comparative advertising as a kind of advertising has

The American court practice realised first that

traditional Germain prohibition.7 ’The UK has a

criteria in Member States where comparative

A kind of convergence started in the late Seventies’

Presented examples on convergence do not affect

of acceptance on comparative advertising. This

As this study mentioned earlier the most classical

advertisement states that the actual price of

The ‘So’ called ‘abstract’ comparison does not refer

The so called ‘system comparison’ aims at

This situation is opposite than cases in ‘abstract’ or

advertising.20 An advertisements can establish a link

desirable to provide a broad concept of comparative

Comparative advertising is a market behaviour.

5. Comparison made by third parties

Comparisons can be divided (i) comparisons made by

5.1 Test comparisons

It is generally permitted in Member States to carry

of comparative advertising. Organisations (which are

If the advertiser refers to such comparative test, he

6. Advertisements claiming superiority

6.1. Theoretical approach

Certain advertisements claim the superiority or

What are legal consequences of this advertising?

6.2. Comparative approach

There is certain divergence among the jurisdictions

(i) In the UK, such advertisements constitute a form